Couples in Washington state who aren’t married can own property as joint tenants or tenants in common. A joint tenancy provides the right of survivorship, meaning that if one partner passes away, the surviving partner will automatically, i.e., without the property having to pass through a will and become subject to probate, inherit the whole property. A tenancy in common does not include this same right of survivorship for unmarried couples. One partner can bequeath their share of the property to another person outside their relationship.
As an unmarried couple in Washington state, without the legal protections offered by marriage, the question of which option would be preferable and why often arises. To answer this, it is important first to understand how being married, in a registered domestic partnership, or unmarried affects the transfer of real property.
Registered Domestic Partnerships in Washington State
Registered domestic partnerships in Washington State have become less common since same-sex marriage was federally recognized. However, couples registering as domestic partners still receive legal rights and responsibilities akin to married couples under state law. While registered domestic partnerships grant state-level privileges, they do not confer the same rights and responsibilities as married couples under federal law.
In Washington State, several criteria determine eligibility to register for a domestic partnership. One partner must be at least 62 years old, while the other must be at least 18 years old. Both partners must be legally capable of consenting to the domestic partnership, meaning they are mentally competent and able to understand its implications. Neither partner can already be married or in another domestic partnership at the time of registration. Additionally, the partners must not be related closely by blood. Finally, both partners must live together, establishing a shared residence.
Why might you want to establish your relationship as a registered domestic partnership?
If you reside in Washington State and are 62 years old or older, marrying or remarrying could result in a loss of social security or pension benefits that you depend on. Registering a domestic partnership provides you and your partner with the same legal rights and responsibilities as married couples under state law while avoiding the potential loss of pension or other benefits associated with marriage, particularly under federal law.
Under a registered domestic partnership, all property you buy with money earned during the partnership — real estate, vehicles, furniture, and so on — is community property belonging equally to both of you. If you don’t qualify for a registered domestic partnership, protecting real estate with a joint tenancy or tenancy in common can help.
Presumption of Community Property in Washington State for Married Couples and Those in a Registered Domestic Partnership
Washington is one of nine community property states. In Washington, property owned jointly by married couples or couples in a registered domestic partnership is considered community property.
When a married person or someone in a registered domestic partnership receives real property in Washington, it is presumed to be community property. Exceptions include property acquired as separate property through gift, bequest, or agreement.
Both partners equally own community property and must sign all agreements and documents for transferring the property or using it as collateral to secure a loan. If one married partner or a partner in a domestic registered partnership dies, the community property belonging to the person who died then passes through their will.
According to Washington state law, if a married couple or couple in a registered domestic partnership dies without a will, their half goes to their surviving partner. Usually, deeds that designate property as community property identify the parties as a married couple or registered domestic partners.
Unmarried Couples Not Registered Domestic Partners
Problems could arise for unmarried couples who are not registered domestic partners, even if the couple has a cohabitation agreement. A will, a legal document outlining an individual’s wishes to distribute their property after death, can help.
If you pass away without a will (you die intestate), Washington state’s intestate succession laws determine how your assets are divided among your relatives. If none are found, they may revert to the state.
For unmarried couples living together long-term, Washington state law does not automatically grant rights to inherit each other’s assets upon death. Intestate laws can be complex, especially for non-traditional family structures like unmarried couples.
Thus, it is advisable to specify clearly in your will how you want your assets distributed after your death. Specifically, unmarried couples should explicitly state their intentions regarding inheritance for their partners. In cases where unmarried cohabiting couples jointly own property, they may also consider holding the property as joint tenants with the right of survivorship instead of relying solely on a will.
What is a joint tenancy?
A joint tenancy allows two or more people (joint tenants) who may or may not be married to hold property in equal shares. This form of ownership allows partners to share ownership during their lifetimes, with the property automatically transferring to the surviving partner upon one partner’s death without the need for probate. Additionally, joint tenancy offers benefits such as shared debt responsibility and can serve as a formal commitment documented in legal records.
To create a joint tenancy with this “right of survivorship,” the title must be acquired in equal shares, at the same time, and by the same conveyance instrument, which must clearly state the intention to create a joint tenancy. A sole owner can convey property to themselves and someone else to establish a joint tenancy. If a joint tenant sells their interest, the buyer does not become a joint tenant but instead holds a fractional interest as a tenant in common.
When should you choose a joint tenancy?
Choosing joint tenancy can be beneficial for several reasons. First, it simplifies inheritance, streamlining the transfer of assets after one partner passes away and eliminating the need for a probate proceeding. In this way, a joint tenancy can likewise provide peace of mind.
Second, a joint tenancy is ideal when both partners have made equal investments in the property and desire to maintain equal ownership and responsibility during their lifetimes. This arrangement reflects a mutual commitment to shared assets and obligations, promoting fairness and transparency in property ownership.
What is a tenancy in common?
Tenancy in common is a way to hold title to property where two or more people or entities, or a mix of both, have fractional ownership interests in the entire property. These fractional interests can be unequal and acquired at different times. Each co-tenant has the right to mortgage, sell, lease, or bequeath their share of the property without affecting the interests of the other co-tenants.
When should you choose a tenancy in common?
Tenancy in common offers several advantages that may suit your needs depending on your circumstances. First, it provides estate planning flexibility by allowing you to designate beneficiaries other than your partner for your share of the property. This element is advantageous if you have specific wishes about the distribution of your assets upon your death.
Second, a tenancy in common accommodates unequal contributions to the property purchase. If you and your partner have invested different amounts into the property and wish to reflect these contributions in your shares, this arrangement allows for such differentiation.
Third, a tenancy in common supports individual autonomy by granting each co-owner the freedom to manage, sell, or transfer their share independently. This last element can be a priority if you value the ability to make decisions about your property without needing consent from the other co-owners.
Sole Ownership
It is possible to name the married person or registered domestic partner who wants to hold the title in their name alone on the deed. This is accomplished by writing that they acquired the property as their “separate estate.”
When a title company insures the title of a married person or registered domestic partner as a separate estate, it will often require the other spouse or partner to formally disclaim or relinquish any right, title, or interest in the property with a quitclaim deed. Doing so demonstrates that both spouses or partners agree the property will be owned solely and separately by one spouse or partner.
Find a Washington State family law attorney who understands agreements for unmarried couples who own real property.
Joint tenancy vs. tenancy depends on your priorities and circumstances. Joint tenancy is ideal for couples prioritizing automatic inheritance and maintaining equal property ownership. On the other hand, tenancy in common is more suitable for those who value flexibility in estate planning, individual control over their share of the property, and the ability to reflect unequal investments.
At Elise Buie Family Law, our team of Seattle divorce lawyers recognizes how important it is to carefully consider your plans for the future and how each form of ownership will align with your long-term goals and relationship dynamics. Legal advice from one of the experienced Washington state family law attorneys in our office can provide personalized guidance that accounts for your unique situation, empowering you to make informed decisions regarding property ownership. Contact our Seattle office today to discuss your estate planning goals or schedule a call.
